Citation Nr: 0501002
Decision Date: 01/13/05 Archive Date: 01/19/05
DOCKET NO. 03-12 298 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUE
Entitlement to service connection for lupus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Robert A. Leaf, Counsel
INTRODUCTION
The veteran had active military service from February 1971 to
February 1977. He also had 5 years, 7 months, and 14 days of
additional prior service.
This appeal to the Board of Veterans' Appeals (Board) arises
from a December 2001 rating decision of the Baltimore,
Maryland, Regional Office (RO) of the Department of Veterans
Affairs (VA).
Unfortunately, the Board cannot yet issue a decision in this
appeal because further development is needed. So the case is
being REMANDED to the RO via the Appeals Management Center
(AMC) in Washington, DC. VA will notify you if further
action is required on your part.
REMAND
The Veterans Claims Assistance Act (VCAA), codified at 38
U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126 (West 2002),
became effective on November 9, 2000. Implementing
regulations were created, codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326 (2004). The VCAA and implementing
regulations eliminated the requirement of submitting a well-
grounded claim and provide that VA will assist a claimant in
obtaining evidence necessary to substantiate a claim, but is
not required to provide assistance to a claimant if there is
no reasonable possibility that such assistance would aid in
substantiating the claim. The VCAA and implementing
regulations also require VA to notify the claimant and the
claimant's representative, if any, of any information, and
any medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant. 38 U.S.C.A. § 5103(a); Charles v. Principi, 16
Vet. App. 370,
373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-
87 (2002).
The RO issued a letter in October 2001 that referenced the
VCAA with respect to the veteran's claim of compensation for
lupus. The letter advised that VA would obtain medical
records from Federal government sources and that VA was
required to make reasonable efforts to help the claimant
obtain records relevant to his claim. The letter does not,
however, provide notice to the veteran clearly specifying the
type of evidence that is needed to substantiate his claim of
service connection for lupus, nor does it provide notice to
him clearly delineating whose specific responsibility-his or
VA's, it is for obtaining this supporting evidence,
particularly any nexus evidence. Quartuccio; Charles. Thus,
further development is required.
In view of foregoing, this case is REMANDED to the RO for the
following development and consideration:
1. Prior to any further adjudication of
the claim of service connection for
lupus, review the claims file and ensure
that all VCAA notice obligations have
been complied with in accordance with
38 U.S.C.A. §§ 5102, 5103, and 5103A
(West 2002), and any other applicable
legal precedent. Compliance requires
that the veteran be notified, by letter,
of any information, and any medical or
lay evidence, not previously provided to
VA that is necessary to substantiate his
claim. A general form letter, prepared
by the RO, not specifically addressing
the claim at issue, is unacceptable. The
RO also must indicate which portion of
the information and evidence, if any, is
to be provided by him, and which portion,
if any, the Secretary will attempt to
obtain on his behalf. Also ask that he
submit any relevant evidence in his
possession.
2. Then readjudicate the claim in light
of any additional evidence obtained. If
the benefit sought on appeal is not
granted to the claimant's satisfaction,
send the veteran and his representative
an appropriate supplemental statement of
the case (SSOC) and give them time to
respond before returning the case to the
Board for further appellate
consideration.
The veteran has the right to submit additional evidence and
argument concerning the claim the Board has remanded to the
RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at
38 U.S.C. §§ 5109B, 7112).
_________________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).